[License-discuss] what would de-listing of licenses look like?

Ben Tilly btilly at gmail.com
Thu Mar 7 20:23:17 UTC 2013

One can reasonably hope that seeing the desired legal reasoning
clearly spelled out in the license would lead the judge towards the
decision that we want.  But when I (admittedly as a non-lawyer) read
that section of that decision, there is nothing that I see that would
have prevented that judge from reaching that conclusion with those
presented facts if the license in question was the much more carefully
drafted GPL v2.

BTW thank you for having been part of the effort to ensure that open
source licenses actually can be enforced in US courts under copyright
law.  It is a critical precedent, and I'm very glad that it was set in
the right direction.

On Thu, Mar 7, 2013 at 11:57 AM, Bruce Perens <bruce at perens.com> wrote:
> Ben,
> Yes, my testimony was to establish the economic interest in attribution of
> Open Source software. However, it's going too far to say that the license
> terms were not a problem. The judge's finding starting at "Plaintiff's Claim
> Sounds in Contract, Not Copyright" is that the Artistic License 1.0 text is
> self-invalidating. It's not so clear that a better drafted license would
> have reduced us to basing the appeal on the economic value of attribution
> alone.
> Thanks
> Bruce
> Ben Tilly <btilly at gmail.com> wrote:
>> I do not believe that you are fairly describing the cause of what
>> happened.  At issue was not the drafting of the license, it was the
>> fact that it was the first time that the legal idea of "follow the
>> license or we sue for copyright" had ever been tested in a US court
>> for software that had been given away to the world on generous terms.
>> The judge's ruling was based on the fact that software was given away,
>> for free, with no expectation of a reward.  Therefore there was no
>> loss in its being appropriated by a third party.  The fact that the
>> software was available to everyone on generous terms meant that there
>> was no cause under copyright law.  The judge ruled that the license
>> could be viewed as a contract, but of course the basic elements of a
>> valid contract were missing and so you couldn't sue under that either.
>> If
>> the hobbyist had used the GPL as a license, the same facts would
>> have existed, and the judge could easily have ruled the same way.  In
>> fact the reason why the case was so important is exactly because the
>> precedent undermined the enforceability of all open source licenses
>> where no contract existed.
>> For verification, the judge's ruling and reasoning are available at
>> http://jmri.sourceforge.net/k/docket/158.pdf.
>> On Wed, Mar 6, 2013 at 10:09 PM, Bruce Perens <bruce at perens.com> wrote:
>>> The license isn't really "standing up" when you have to file a writ of
>>> certiorari after a judge throws his hands up at the license text and
>>> pronounces it to be tantamount to a dedication to the public domain. That
>>> was no easy appeal to win, and the Open S
>>>  ource
>>> developer was seriously
>>> damaged by the cost and the 5-year process. It cost me a good deal of
>>> time
>>> and work too.
>>> A license that stands up would, I hope, require much less time to dispute
>>> and would be parsed as intended by the court.
>>> So, what the Artistic License 1.0 made much more difficult for the poor
>>> Open
>>> Source developer is exactly what I'd like to fix. And yet the Artistic
>>> 1.0
>>> is not the one I thought of first upon seeing this discussion in
>>> progress.
>>> We have much worse.
>>> Thanks
>>> Bruce
>>> John Cowan <cowan at mercury.ccil.org> wrote:
>>>> Bruce Perens scripsit:
>>>>> 1. They are ambiguous or likely to perform in court in unexpected
>>>>> ways,
>>>>>   should
>>>>> they ever be litigated. And thus they are harmful to
>>>>> their users. De-listing is a prompt to the organization that
>>>>> originally created the license to replace it with an accepted
>>>>> license or to submit a new version with greater legal competence in
>>>>> its construction. These would be the "crayon" licenses, mostly,
>>>>> those written without legal counsel.
>>>> And yet the Artistic License 1.0, which is riddled with ambiguities and
>>>> a prototypical crayon license, is one of the few that has been tested
>>>> in court -- and stood up.
>>> --
>>> Sent from my Android phone with K-9 Mail. Please excuse my brevity.
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> Sent from my Android phone with K-9 Mail. Please excuse my brevity.
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